Wurth v. Affeldt

• Decision Date: 03 November 1953
• Citation: 60 N.W.2d 708,265 Wis. 119,40 A.L.R.2d 1376
• Parties: , 40 A.L.R.2d 1376 WURTH, v. AFFELDT et al.
• Court: Wisconsin Supreme Court

Page 708

60 N.W.2d 708

265 Wis. 119, 40 A.L.R.2d 1376

WURTH, v. AFFELDT et al.

Supreme Court of Wisconsin.

Nov. 3, 1953.

Certiorari to review acts of the board of State Bar Commissioners of the state of Wisconsin (hereinafter referred to as the 'board').

The petitioner Walter Wurth in his petition to the circuit court alleged that he met all requirements to take the state bar examinations in 1941, 1942, 1943, and 1944; that he took said examinations given by the board in said years; that the members of the board erroneously marked his examination papers; and that because of such erroneous markings he failed to pass. Said petition prayed that a writ of certiorari be issued to members of the board, in whose custody were the records of said examinations, to the end that the proceedings of the board in the matter might be certified to the circuit court and the action of the members of the board be reversed and set aside.

Pursuant to said petition, a writ of certiorari was issued out of the circuit court for Dane county on June 27, 1952, addressed to the board. The defendant members of the board then served and filed a written motion to quash the writ. Six separate grounds were set forth in support of said motion. One of such six grounds was that the time, within which a writ of certiorari might be had to review the matters involved, had expired and the court was without jurisdiction.

Under date of October 10, 1952, the circuit court issued an order quashing the writ. The petitioner has appealed from said order.

Walter Wurth, in pro. per.

Harlan B. Rogers, Portage, for respondents.

CURRIE, Justice.

While the defendant members of the board have set forth various reasons in support of their contention that the order of the trial court quashing the writ of certiorari should be affirmed, we believe that there is only one of said grounds which needs to be considered. Such ground is that the time within which petitioner might institute certiorari proceedings to review the action of the members of the board in marking the petitioner's bar examination papers for the examinations given in 1941, 1942, 1943, and 1944 had expired prior to the filing of petitioner's petition in June, 1952.

The brief submitted in behalf of the defendants maintains that the certiorari proceedings in the instant case are barred by the six-year limitation contained in sec. 330.19, Stats. This raises the question of whether the provisions of ch. 330, Stats., are applicable to special proceedings, such as certiorari or mandamus.

Sec. 330.01, Stats., provides in part as follows:

'Civil actions can only be commenced within the periods prescribed in this chapter except when, in special cases, a different limitation is provided by statute.'

Sec. 330.14, Stats., which must be read in connection with sec. 330.19, Stats., provides: 'The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued.' It is highly significant that nowhere in ch. 330 is there any express statement which would indicate that any of the limitation periods imposed by said chapter are applicable to special proceedings.

The amendments to the rules relating to pleading, practice and procedure promulgated by this court, effective July 1, 1945, appearing in Vol. 245, Wis.Reports, made changes in quite a number of sections embraced within Title XXV so as to eliminate specific references to special proceedings. These amendments to the rules were drafted and presented for adoption by the Advisory Committee on Rules of Pleading, Practice and Procedure, pursuant to a recommendation made by Mr. Chief Justice Rosenberry set forth in the case of In re Henry S. Cooper, Inc., 1942, 240 Wis. 377, 2 N.W.2d 866, in which he pointed out the confusion which then existed in the statutory provisions relating to special proceedings and civil actions.

One of these changes was to amend sec. 260.01, Stats., refining the scope of Title XXV, and as so amended sec. 260.01, Stats., now reads:

'Title XXV relates to civil actions in the circuit courts and other courts of record, having concurrent jurisdiction therewith to a greater or less extent, in civil actions, and to special proceedings in such courts except where its provisions are clearly inapplicable or inappropriate to special proceedings.'

However, sec. 260.02, Stats., was left unaltered, and continues to provide as follows:

'Remedies in the courts of justice are divided into:

'(1) Actions.

'(2) Special proceedings.'

Special proceedings are specifically referred to in sec. 274.01, Stats., as well as civil actions, which section limits the time within which writs of error may be issued, or appeals taken, to this court.

Ch. 330, Stats., does not constitute part of our code of civil procedure found in Title XXV, but is part of Title XXX. Therefore, the changes made in sections of Title XXV which became effective July 1, 1945, above mentioned, would have no application to ch. 330.

In the recent case of Buell v. County Court, 1944, 175 Or. 402, 152 P.2d 578, 154 P.2d 188, 155 A.L.R. 1135, the Oregon court was confronted with the problem of whether its statute of limitations applied to a special proceeding such as mandamus, and it came to the conclusion that it did not. In its opinion in that case, the court pointed out that when the Oregon legislature enacted its code of civil procedure in 1862 it carefully preserved the distinction between actions at law, suits in equity, and special proceedings such as mandamus, which distinction has been continued in subsequent compilations of the Oregon statutes; and that, while some of the provisions relating to actions at law were made specifically applicable to special proceedings, there was no statutory provision placing mandamus and other special proceedings within the operation of the general statute of limitations applicable to ordinary actions. These reasons advanced by the Oregon court for its conclusion that its general statute of limitations did not apply to special proceedings appear to us to be unanswerable, and should lead us to the same conclusion with respect to our own statute of limitations embraced in ch. 330 not applying to special proceedings, such as certiorari and mandamus.

This court in State ex rel. Dalrymple v. Milwaukee County, 1883, 58 Wis. 4, 16 N.W. 21, 24, seems to have assumed, without directly deciding, that our general statute of limitations had no application to certiorari proceedings. In that case certiorari was instituted in 1881 to review the action of the board of supervisors of Milwaukee county taken in 1873 to vacate a certain street in the city of Milwaukee. Sec. 4222 of the Revised Statutes of 1878 provided for substantially the same six-year statute of limitations now found in sec. 330.19, Stats. Subd. (3) of said sec. 4222 read as follows: 'An action upon any other contract, obligation or liability, expressed or implied, except those mentioned in the last two preceding sections' which wording is almost word for word that of our present subd. (3) of sec. 330.19 relied upon by the defendants in the case at bar. The court, however, in its decision in State ex rel. Dalrymple v. Milwaukee County, s...